Wednesday, 28 May 2014

A new report, Back
from the battlefield: domestic drones in the UK, examines the use of drones by public and private actors within the UK, focusing
in particular on law enforcement and border control authorities, law and
regulation, and public and private funding for technological and regulatory
development. As well as looking at the current situation, the report considers
potential future developments and argues in this respect that public
discussion, debate and decision-making is needed before the use of drones – in
particular for surveillance purposes – becomes widespread.

Due to a lack of safety guarantees and regulatory framework
the use of drones in the UK remains limited, particularly amongst public
authorities, although there are moves to introduce them more widely. Currently
it is private companies dealing with surveying, mapping, photography, filming
and safety inspection that use the vast majority of drones licensed for
operation within UK airspace. However, as technology develops and becomes more
widely available this is likely to change, and various attempts are being made
to drive this development and capitalise on what is perceived as a significant
market for ‘civil’ drones.

Public pounds

A key role in this push is played by millions of pounds of
public and private funding that has gone towards technological and regulatory
research and development. Over the last decade some £80 million of public money
has gone towards research for and development of domestic drones or the
technology required for their use, although given that research into military
drones may be applicable in the civilian sphere, the total amount is likely to
be significantly higher.

The UK’s flagship research programme, ASTRAEA, received
public funding of £32 million, which was matched by the private sector. ASTRAEA
sought to develop the technology necessary to allow routine drone flights in
domestic airspace. It has had little to no regard for privacy, data protection
or other civil liberties and human rights considerations, and appears to have
been drawn up and implemented by large arms firms – including BAE Systems,
Cassidian, Cobham, Rolls-Royce and Thales – and state officials with no
democratic input or oversight.

Civilian drone research and testing in the UK looks set to
further benefit over the coming years following the September 2013 launch of
the National Aeronautical Centre, a private site which will enable “the
development, testing, evaluation, training and demonstration of UAS that can
fly beyond visual line of sight”. The launch of the Centre adds to pre-existing
drone testing facilities in west Wales, until now primarily used for defence
purposes but now “open to civilian and military contractors and operators,”
with “the capacity to deliver the necessary services and accommodation for all
sizes of UAS envisaged for production and development over the next 20 years.”

While it is unknown exactly how much funding private firms
have put into drone research and development over the last decade, for those
projects examined in the report funded jointly by public and private bodies,
public funding has consistently been more generous. This differs little from
many established models of public investment in technologies not yet considered
‘market-ready’, but it remains worth noting that it is ultimately private
companies who will reap the financial benefits of the development of the
supposedly multi-billion pound domestic drone market.

In this respect, and as with the ongoing attempts by the European
Commission to see drones introduced more widely in domestic airspace (see its recent report), the role of state authorities in ‘market creation’ is clear to see. Information
has recently come to light on the UK’s “Cross Government Working Group on
Remotely Piloted Aerial Systems”, which has a number of aims, one of which is:
“To identify and address barriers to a successful UK industry base, to support
the Government’s growth agenda.”

Civil liberties
concerns

Notably, there is no mention of privacy or civil liberties
in the Cross Government Working Group’s list of priorities. In this respect the
government has already set out its stall, with Policing Minister Damian Green
telling Conservative MP Nicholas Soames in May 2013 that:

“Use of unmanned aerial vehicles
would need to comply with existing Civil Aviation Authority regulations. Covert
use by a public authority likely to obtain private information, including by
any law enforcement agency, would be subject to authorisation under the
Regulation of Investigatory Powers Act [RIPA] 2000... Any overt use of a
surveillance camera system in a public place in England or Wales will be
subject to a new code of practice prepared under the Protection of Freedoms Act
2012, on which the Home Office is currently considering its response to
statutory consultation.”

However, both RIPA and the new (voluntary) Surveillance
Camera Code of Practice contain numerous shortcomings and neither applies to
private bodies or individuals. RIPA in particular has been routinely criticised
by lawyers, campaigners and charities, with the legal support charity JUSTICE
arguing that it “fails to provide adequate safeguards against unnecessary and
disproportionate surveillance” and is “inadequate to cope with such
developments as aerial surveillance drones, Automatic Number Plate Recognition,
deep packet interception, and, indeed the Internet itself.”

Considering these inadequacies – and in the light of ongoing
revelations about mass telecommunications surveillance by security agencies and
the highly controversial use of undercover police officers in protest movements
– there is arguably a need for a thorough revision of the UK’s legal and
regulatory framework surrounding all forms of surveillance.

The equally crucial issues of safety, airworthiness and
pilot training are dealt with in the UK by the Civil Aviation Authority, and
broadly speaking it appears that current regulations address these issues – for
example, the propensity of drones to crash – relatively well. However, there are
concerns over the use of drones weighing less than 7kg that remain out of scope
of CAA regulations, particularly with the growing construction, purchase and
use of drones by individuals.

While enforcing a regulatory and legal framework to cover
‘DIY’ drones, particularly those that are particularly small, may be difficult,
the adoption of such a framework will become increasingly necessary as
‘private’ drone use increases. They are highly prone to crashing and people
have been killed and injured by falling drones. The risk is significant: earlier
this month the US equivalent of the CAA, the Federal Aviation Authority (FAA),
revealed that a small drone nearly collided with an airliner over Florida in
March 2014, which could have had “catastrophic results”. Growth in the use of drones by private companies also calls into question the
reliance of the government on a voluntary Surveillance Camera Code of Practice
and the provisions of the Data Protection Act, passed into law in 1998 when
surveillance by aerial drone was a distant prospect.

The boys in blue

Responses to Freedom of Information requests issued to every
UK police force show that eleven forces are known to have used drones, but that
the technology is only currently used by two – Staffordshire and the Police
Service of Northern Ireland. Drones have been used these two police forces for
a variety of purposes (most widely by Staffordshire), including for the
monitoring of demonstrations, the surveillance of poachers, and in attempts to
deter anti-social behaviour and track criminals. Other forces have had less
luck: Merseyside police trumpeted their capture of a car thief after deploying
a drone to hunt him down when he fled the vehicle, only to be ticked off by the
Civil Aviation Authority and banned from using their drone after it emerged they
had never obtained a licence.

Further away from the public eye, the Serious Organised
Crime Agency (now replaced by the National Crime Agency) appears to have acquired
the use of drone technology in late 2012. In December 2012 the agency signed a
£9 million contract with Selex ES for five years’ work on “managed air support
services”. Selex ES doesn’t produce planes or helicopters, but does manufacture
and sell “advanced Unmanned Aerial Systems (UAS) to customers worldwide to
enhance their situational awareness capability.” SOCA's contract with Selex ES
came at the same time as Britain's police forces began regularly employing
"national security" exemptions when responding to Freedom of
Information requests on drones, allowing them to neither confirm nor deny
whether they held any information on drones if it was related to the Serious
Organised Crime Agency

Over the years the police approach to unmanned technology
has become increasingly centralised. An Unmanned Aerial Systems Steering Group
run by the Association of Chief Police Officers (ACPO) and the National Police
Air Service, established in October 2012, currently keeps chief constables from
around the country up-to-date on developments, and a single technical
requirement for police a drone has been developed by the Home Office. Police
representatives are presumably also involved in the Cross Government Working
Group noted above.

While the National Police Air Service has remained
tight-lipped over what information it holds on drones, referring questions back
to ACPO, it does not seem that the widespread acquisition or deployment by
police forces of drones is an immediate proposition – meaning that the time for
a meaningful debate on the issue should be now.

Drones for border
control?

Revelations in 2010 that Kent Police and the UK Border
Agency were working in partnership with BAE Systems to develop drones for the
monitoring of the UK’s borders were met with concerns from civil liberties
organisations, with other suggested uses including monitoring fly-tippers and
cash machine thefts. That project – known as the South Coast Partnership – no
longer exists. In fact, it seems that Kent Police – who subsequently tried to
downplay the project as “never a structured arrangement” – were unceremoniously
dumped by BAE Systems. They “communicated by telephone” the news that the
project was over, and the force claims to hold no documentation in relation to
it.

Kent Police have, however, taken on a role in a
cross-border, European Union-funded project with French and Dutch authorities
and institutions that has a similar objective: the use of drones for border
control, along with critical infrastructure and environmental monitoring. Called
3i, it has received half the total costs (€1,854,571) from the European Commission’s
Directorate-General for Regional Policy. Kent Police, one of fourteen partners,
received €53,421 of this.

The project aims to “deliver a prototype of an unmanned
aerial vehicle and contribute to the knowledge base on [UAVs] and their
application for maritime security,” including incident response, preventive
patrolling places of interest, and critical infrastructure monitoring. One use
includes monitoring “unexpected movements of small craft across frontiers (to
smuggle commodities or people),” which may make it of interest to ACPO’s Unmanned Aerial Systems Steering
Group – it was noted at one meeting that drones deployed at the border would be
particularly useful for “securing the borders from refugees and drug
importation.”

A democratic debate

Ultimately, the report argues that the fears raised in media
reports in recent years – skies awash with high-powered state surveillance
drones – have not yet come to pass. For this reason, it is urgent that a public
debate on domestic drones takes place sooner rather than later, and that
decisions on acceptable limits for their use are taken in an open and
democratic manner – not in secretive working groups and industry-dominated
research consortiums.

The Prime Minister, lacking a majority in the House of
Commons, is harried by his Eurosceptic backbenchers. He promises a renegotiation
of the UK’s membership of the EU, followed by a referendum on whether to stay
in. It’s 2014 – but it’s also 1975.

That renegotiation and referendum ultimately resulted in a
landslide vote in favour of staying in the EU. While the circumstances are
different in some respects in 2014, there is a strong case for repeating this
process.

The argument for a referendum on the EU has so far been made
either by those who are opposed to the UK’s membership of it (UKIP), or as a
concession to those backbenchers who are highly critical of it (the
Conservative party). On the other hand, it has been resisted by those who are
most in favour of the EU.

In that light, the purpose of this post is two-fold: (a) to
make a pro-European case for a referendum and (b) to describe exactly how the
UK should renegotiate its membership beforehand.

The pro-European case
for a referendum

The case for a referendum on EU membership should stand on
its own, and should not be seen as a defensive reaction to the results of the
most recent European Parliament elections.

First and foremost, since 1975 there have been five major
Treaty amendments, as well as substantial enlargement of the EU. The political
and economic circumstances of the country, and the EU as a whole, have clearly
changed. There is therefore a principled argument for allowing the voters to
give their fresh consent (or not) for these developments.

Secondly, the continued pro-European rejection of a
referendum has made it possible for critics of the EU to characterise
pro-Europeans as anti-democratic. Of course, it can be argued in response that
representative democracy is also a valid form of democracy, one with longer and
deeper roots in British political culture, and that the UK Independence Party
has never (at least to date) won a single seat in the House of Commons. But in
light of the growing tradition to decide important constitutional questions by
popular referendum, that counter-argument has diminishing force. After all,
voters cast their vote at general elections for many reasons besides their view
on membership of the EU.

More broadly, pro-European opposition to a referendum makes
it look as if pro-Europeans do not have the courage of their convictions. If the
EU is, as they say, such a good thing for the UK, why fear a popular vote on
it? In fact, on several occasions, pro-Europeans have promised a referendum on some aspect of the EU, and then apparently
(if not technically) reneged on their promise. This gives the impression that
pro-Europeans cannot be trusted, and so leads some voters to question the
honesty of their arguments. The longer that pro-Europeans resist the case for a
referendum, the more that these negative impressions will grow. Put simply, the
pro-European resistance to an in/out referendum is surely damaging the
pro-European cause.

While Labour and the Liberal Democrats have promised an in/out referendum, this would only take place in the event of a new Treaty
transferring powers from the UK to the EU. While it is possible that there will
be negotiations for Treaty amendments in the next few years, it is
inconceivable that those parties would agree to the transfer of fresh powers
from the UK to the EU in that context. So that referendum promise is
meaningless. The Labour and Liberal Democrat position is like promising that if
I had a sex change, I would stay married to my wife. But I’m not going to get a
sex change.

In any event, the very offer of an in/out referendum, even if the conditions for it to be held are unlikely
ever to be satisfied, undermines the logic of the arguments against having such
a referendum.

It must be emphasised that the case for a referendum is
non-partisan: advocating a referendum does not necessarily mean supporting
British withdrawal from the EU, or supporting any other policy espoused by the
Conservative party.

So the pro-European response to calls for a referendum
should no longer be to find an excuse not have one, to promise one and renege
on that promise, or to promise one that will never be held. It should be, simply: Bring it on.

Renegotiation of UK
membership

Before examining the details of renegotiation, one critical
rule must be set down at the outset. Any renegotiation position must avoid
insisting upon Treaty amendment, or upon a change in EU law which necessarily
involves Treaty amendment (such as complete UK control over the free movement
of persons). That’s because a Treaty amendment will be far more difficult to
achieve, in particular if it becomes bound up with other possible amendments to
the Treaties concerning other issues. Those who demand that such renegotiation positions
(such as full control over the free movement of persons) should be a ‘red line’
are essentially dishonest. If that issue is crucially important to them, they should
instead call for UK withdrawal of the EU, with all of the consequences which
that entails.

In fact, back in 1975, other Member States agreed to a
renegotiation consisting of amendments to EU secondary legislation, and the
British public ultimately accepted that deal. Again, it would be possible today
to address many of the issues arising from the UK’s membership of the EU by
amending secondary legislation. Indeed, Jean-Claude Piris recently argued
that the negotiation demands set out by David Cameron could all be addressed by
amendment of secondary EU legislation.

As discussed in a previous post, this is correct. However,
there is a risk that the critics of the EU would not be entirely satisfied by
it. The better strategy is therefore to aim for an intermediate course: in
conjunction with amendments to EU secondary legislation, there should be a decision of the EU Heads of State and
Government, meeting within the European Council, which constitutes the EU’s
response to the renegotiation request.

Such Decisions have been adopted in the past, as regards Denmark and Ireland, in order to address the former Member State’s difficulties
ratifying the Maastricht Treaty and the latter Member State’s difficulties
ratifying the Treaty of Lisbon. In the latter case, the European Council also agreed
the broader legal and political context of this decision: the decision was ‘legally
binding’, it did not constitute a Treaty amendment, and its content would be
set out in a Protocol to be attached to the Treaties in future. Indeed, the latter
protocol was subsequently signed as promised. The UK could be offered a
similar commitment.

In order to indicate more clearly how the renegotiation
would work, the annex to this post suggest a possible wording for such a
decision, based upon the 2009 Decision concerning Ireland, adapted to the
Conservative party’s negotiating demands.

The Heads of State or Government of the 28 Member States of
the European Union, whose Governments are signatories of the Treaties,

Taking note of the concerns of the British people identified
by the Prime Minister of the United Kingdom,

Desiring to address those concerns in conformity with the
Treaties,

Having regard to the Conclusions of the European Council of [xx
date] 2017,

Have agreed on the following Decision:

Section A

Enlargement and the movement of persons

In every forthcoming enlargement of the European Union, the
current Member States agree that the free movement of persons from a new Member
State will be dependent on a unanimous decision of the Council, which will be
taken at the latest once the income of the new Member State concerned is 75% of
that of the other Member States of the European Union.

Section B

Free movement of persons and social benefits

The Heads of State and Government confirm that, in
accordance with the jurisprudence of the Court of Justice of the European
Union, Member States may deny benefits to nationals of other Member States who
are not workers or self-employed persons.

Note: see the recent
Advocate-General’s opinion in the Dano case (press release here); see also the
previous post discussing the current limits on expelling persons following
unemployment and/or requests for social assistance.

Section C

Powers of national parliaments

The Heads of State and Government take note of the
Commission’s firm commitment that, building upon the Protocols on national
parliaments and on subsidiarity and proportionality attached to the Treaties,
it will withdraw any proposal which is opposed by one-third of Member States’
parliaments.

Section D

Economic reform

The Heads of State and Government [make specific commitments
as regards free trade agreements and amendments to EU legislation, or refer to
such agreements and treaties which have already been agreed].

Section E

Policing and criminal law

The Heads of State and Government reaffirm the United
Kingdom’s sovereign power not to opt in to proposals for new legislation on
criminal law or policing pursuant to the Protocols attached to the Treaties,
and the provisions of the Treaties which require respect for the national identity
and legal system of every Member State.

They confirm their strong support for the ongoing process of
reform of the system established by the European Convention on Human Rights.

Note: if the process
of ECHR reform is completed before the UK renegotiation of its EU membership,
there could be a more specific commitment to give effect to the results of that
process, for instance ratifying a new protocol to the ECHR.

Section F

Reduction of EU
competences

The Heads of State and Government reaffirm that In
accordance with Article 48 TEU, the competences conferred upon the Union can be
reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose
to exercise its competences less intensively in those areas where it shares
competence with its Member States.

Note: this could be
accompanied by specific commitments to repeal or reduce the scope of some
existing EU legislation.

Section G

‘Ever Closer Union’

The Heads of State and Government confirm that the
commitment in the Treaties to ‘ever closer union’ has no specific legal effect.
It does not require that further competences be conferred upon the Union, or
that the Union must exercise its existing competences. Nor, in accordance with
Section D, does it constrain the Member States from adopting Treaty amendments
which reduce the Union’s competences, or constrain the Union from choosing to exercise
its competences less intensively.

Friday, 23 May 2014

While the EU’s Working Time Directive is often
criticised in the UK, there are surely some workers who welcome (among other
things) the four weeks’ annual paid leave which are guaranteed by the Directive
– particularly if they would not otherwise receive it. More particularly, for anyone who works on
commission, yesterday’s CJEU judgment in Lockresolved an important issue affecting the calculation of their holiday pay.

Commission payments can often make up a large proportion of
a worker’s income, and this is particularly manifest in Mr. Lock’s case. During
2011, his basic salary (£1222 a month) was well below the national average. But
after adding commission (averaging £1913/month), his total salary (averaging £3135/month)
rose well above it.

EU law does not regulate the level of workers’ salaries as
such. But Article 7 of the working time Directive states that every worker must
receive four weeks’ annual paid leave ‘in accordance with the conditions for
entitlement to, and granting of, such leave laid down by national legislation
and/or practice’.

While this wording seems to leave a lot of discretion to
Member States, the CJEU has always circumscribed that discretion tightly in
light of the importance of this social right (now set out in Article 31 of the
EU Charter of Fundamental Rights). The right cannot be denied to fixed
term-workers (BECTU) or to persons on
maternity leave (Merino Gomez). It
can be carried forward if a person is on long-term sick leave (Schultz-Hoff), but Member States still
retain some power to limit this (KHS).
As for the calculation of the pay, it cannot be ‘rolled-up’ across each month’s
salary (Robinson-Steele), and must take
into account various pay supplements (Williams).

But does that requirement to take pay supplements into
account apply also to commission? A few years back, the Court of Appeal of
England and Wales said that it didn’t. But according to the CJEU in Lock, building on its prior case law, it
did. Furthermore, the Court clarified how to calculate that commission. Applying
the Williams judgment by analogy, the
Court ruled that Mr. Lock’s commission was ‘directly linked to his work’ within
the company, and so was linked to the ‘performance of his tasks’. So it had to
be paid during his annual leave, just like allowances related to ‘seniority,
length of service and…professional qualifications’. In contrast, payments which
‘are intended exclusively to cover occasional or ancillary costs’ do not have
to be paid to workers during their annual leave.

Comments

This judgment will certainly be welcome for workers who
receive commission payments, in particular if they do not already get those
payments while on holiday. Likewise, it will be unwelcome for their employers.
But it’s not really much of a surprise in light of the general tenor of the
CJEU’s judgments on annual leave and the working time Directive, going back
nearly 15 years now.

There is still a very residual role left for national law in
this case: the CJEU says that national law can determine the period which is
considered to be ‘representative’ for the purposes of calculating the worker’s
average commission. So the employee cannot insist on selecting the period when
his or her commission was particularly high; but nor can the employer limit the
effect of the ruling by insisting upon a reference period when the commission
was lower than usual.

Given that the CJEU consistently limits the possible
discretion of Member States applying the Directive, the question again arises
what happens if there is a dispute with a private employer regarding working
time and the national legislation in question cannot be interpreted
consistently with the Directive. The CJEU ducked this issue in Dominguez, but it arises again in Fenoll, where the Advocate-General’s
opinion is coming in June.

In the meantime, in the AMS case, the Court has begun to clarify the legal effect of the EU Charter as
regards private parties. The practical importance of the working time Directive
surely requires that the CJEU has to give a proper answer to this question, at
least as regards Article 31 of the Charter.

The adoption of
Directive 2014/41/EU on the European Investigation Order (EIO) is a milestone for judicial cooperation in criminal
matters in the European Union notably after the entry into force of the Lisbon
Treaty and of the EU Charter of Fundamental Rights. This post focusses in turn on the broader legal
context of the new Directive, its territorial scope in light of various
opt-outs, and its important provisions on the relationship between human rights
and mutual recognition.

A
comprehensive single instrument

As from 22 May 2017,
this Directive replaces most of the existing laws in a key area of judicial
cooperation – the transfer of evidence between Member States in criminal cases
– by a single new instrument which will make cross-border investigations
faster and more efficient.

That current
patchwork of rules comprises:

-the Council of Europe Convention on Mutual Assistance in Criminal
Matters of 20 April 1959 (and its two additional protocols);

Unlike the European Evidence Warrant, which most Member States thought
was useless and have not bothered to implement, the new Directive will cover
almost all investigative measures such
as interviewing witnesses, obtaining of information or evidence already in the
possession of the executing authority, and (with additional safeguards)
interception of telecommunications, and information on and monitoring of bank
accounts. The Directive will not apply to Schengen cross-border surveillance by
police officers under the Schengen Convention, or to the setting up of a joint
investigation team and the gathering of evidence within such a team which. According
to the legislator, these issues “require specific rules which are better dealt
with separately”.

A small part of the previous Conventions will remain in force because
they regulate issues outside the scope of investigations, such as compensation
for wrongful conviction. A handbook for practitioners will clarify this issue
in future.

Territorial
scope

The Directive will
apply to all the EU Member States with the exception of Denmark (because of the
general exclusion of this country from Justice and Home Affairs measures– see
Protocol 22 attached to the Treaties) and of Ireland which, until now, has not
“opted in” as it has the faculty to do according to Protocol 21 attached to the
Treaties. Surprisingly the UK “opted in” and so took part in the vote even if
by …abstaining. (Note: by so doing it also avoided national parliamentary scrutiny).

Due to the position
of Ireland and Denmark, the former Framework Decision on the European Evidence
Warrant has not
been repealed, so will “survive”, but only for the relations between Ireland and
Denmark and the other EU Member States. Probably the legislator wanted to still
the door open to Ireland for a late “opt-in” (still possible any time after the
adoption of an EU JHA act – see Article 4 of Protocol 21).

This tricky (and
hopefully transitional) legal situation has obliged the legislator to use in Article
34 of the Directive a generic and flexible reference to “…the
Member States bound by this Directive” (a
formula already used for the “Human Trafficking” Directive, as well as other
measures such as EU asylum legislation).

These are legal acrobatics which do not strengthen legal
certainty and have already triggered some public statements by several Member
States which very politely urge the Commission and the Presidency to
…”consider possibilities to ensure legal clarity on the repealing of the
Framework Decision [on the European Evidence Warrant] for all Member States.”

From legal
assistance to mutual recognition

The huge
advance of the new text is that it makes the transition from the mutual legal
assistance mechanisms, where the requested State has a wide discretion to
comply with the request of another State, with a mutual recognition mechanism
where each State must in principle recognise and execute a request coming from
another Member State. By choosing the word “order” and by referring to “issuing”
and “executing” States, in place of “requesting” and “requested” States, the
legislator clearly indicates how the system has changed.

In the same perspective the
execution of an EIO should not be refused on grounds other than those stated in
Article 11 of the Directive (such as human rights, territoriality, national
security and double jeopardy), although the executing authority will be entitled
to opt for a less intrusive investigative measure than the one indicated in an
EIO if it it is still possible to achieve similar results. Article 12 of the
Directive set also mandatory deadlines for carrying out the investigative measures
and requires that the recognition or execution should be carried out with the
same priority and speed as for a similar domestic case.

Building on Mutual (but not blind) trust…

The mutual recognition regime been so incisive for the
national systems of criminal law it is not surprising that several civil
society organizations, academia and even ...Eurojust raised several
reservations on the introduction of a too ambitious EIO.

The main message was to take better into account the
specificity of the national systems as well as the need to protect fundamental
rights and the proportionality principle - all concerns already raised as
regards the implementation of the European Arrest Warrant (EAW), which is at
the same time the most successful but also controversial mutual recognition EU measure.

This time, all these aspects have been thoroughly
negotiated by the European Parliament which engaged a strong four year dialogue
with the member states representatives (from the presentation of the proposal
in April 2010 until February 2014) before reaching, after twelve trialogues and
several technical meetings, a “first reading agreement” on the text.

Fundamental
rights and mutual recognition: resolving the conflict?

The EP’s role can best be seen in recital 19 in the preamble to the
Directive, which states:

“The
creation of an area of freedom, security and justice within the Union is based
on mutual confidence and a presumption of compliance by other
Member States with Union law and, in particular, with fundamental rights.
However, that presumption is rebuttable.
Consequently, if there are substantial
grounds for believing that the execution of an investigative measure indicated
in the EIO would result in a breach of a fundamental right of the person
concernedand that the executing State would disregard its
obligations concerning the protection of fundamental rights recognised in the
Charter, the execution of the EIO should be refused.”(emphasis added)

This principle is
reflected in Article 11(1)(f) of the Directive, which permits a refusal to
execute an EIO on human rights grounds. To qualify as “rebuttable” in a
legislative text the presumption of compliance by another Member State with EU
law and fundamental rights is an important progress in an European Union which
since the Tampere programme has considered mutual recognition to be the
cornerstone of the judicial cooperation in criminal matters and which until now
has usually made only generic reference to protection of fundamental rights in
mutual recognition instruments (one exception is the Framework Decision on the
mutual recognition of financial penalties).

However by suggesting
this wording the EP extended to criminal matters the principle expressed by the
CJEU in EU asylum policy with the N.S.ruling, which states:“

The Member
States, including the national courts, may not transfer an asylum seeker to the
Member State indicated as responsible where they cannot be unaware that
systemic deficiencies in the asylum procedure and in the reception
conditions of asylum seekers amount to substantial grounds for believing
that the asylum seeker would face a real risk of being subjected to inhuman or
degrading treatment within the meaning of Article 4 of the Charter of
Fundamental Rights of the European Union. The
Court considers that the Member States have a number of sufficient instruments
at their disposal enabling them to assess compliance with fundamental rights
and, therefore, the real risks to which an asylum seeker would be exposed were
he to be transferred to the Member State responsible”

By analogy with the NS case, the refusal to execute an EIO on human rights grounds must
logically be mandatory, even though
the legislation suggests that such a refusal is optional. But it should be
noted that the wording of the Directive suggests that a defect in another
Member State should be judged in individual
cases, whereas the NS ruling referred
rather to “systemic deficiencies”.

Primacy of EU law and
protection of national constitution’s principles

But the EP was also concerned for the respect of the
protection of the fundamental principles of the national criminal law systems.
These principles can be protected by the Member States during the negotiation
of an EU measure by using the so called “emergency brake” foreseen by Articles
82 and 83 TFEU. The point remain how to take in due account these same
fundamental aspects also after the adoption of an EU measure. The EP considered that the CJEU jurisprudence
on Raduand Melloni(dealing with the implementation of the EAW) and giving priority
to EU law also against constitutional principles in the Member States was going
too far, so it insisted upon making explicit reference to the Member States’
constitutions.

The result of this pressure is mirrored in the first
part of recital 39 in the preamble, which states :

“This
Directive respects the fundamental rights and observes the principles
recognised by Article 6 of the TEU and in the Charter, notably Title VI
thereof, by international law and international agreements to which the Union
or all the Member States are party, including the European Convention for
the Protection of Human Rights and Fundamental Freedoms, and in Member States' constitutions in their respective fields of
application..”.

The final words of this recital echo Article 53 of
the Charter of Fundamental Rights, which deals with the relationship between
the Charter and (inter alia) national
constitutions. While the CJEU found in Melloni
that Article 53 justified setting a ceiling on national constitutional protection
in that case, that judgment concerned an issue which had been extensively
regulated by EU law (in absentia
trials as a ground for refusal), whereas there are no equivalent provisions in
the EIO Directive.

Will this text be sufficiently clear to push the
CJEU to recognise a wider “margin of appreciation interpretation” of national
authorities as regards JHA, as suggested by the former Advocate General Francis
Jacobs some time ago? We may have still to wait for years before knowing the right answer. However,
it could be arguable that in the meantime, the CJEU should take the rules in
this Directive regarding the relationship between human rights and mutual
recognition into account when interpreting other EU mutual recognition
measures, such as the EAW.

Conclusion

These are only some general observations on a Directive
which requires a deeper analysis. However it is worth noting that the Directive
makes already explicit reference to the first three post-Lisbon measures
dealing with procedural guarantees for criminal suspects, namely:

-Directive 2013/48/EU on the right of access to a lawyer and the right to
communicate when deprived of liberty.

Even though these are still only among the first EU
criminal law texts adopted following the entry into force of the Treaty of Lisbon,
all the pieces of the mosaic are progressively falling into place.

Thursday, 22 May 2014

As was expected, the Advocate-General’s opinion (not yet available in English) in the Deckmyn case was released this morning. This dispute involves interesting
questions such as the interpretation of the parody copyright exception, the
requirements attached thereto and its relationship with other fundamental
rights.

The provision concerned isArticle 5(3)(k) of the Infosoc Directivewhich allows Member
States to introduce an exceptionto
the reproduction right (Article 2 of the Directive) and the right of
communication to the public (Article 3 of the Directive) for the purpose of
caricature, parody or pastiche.

As the English introduction of a parody exception is being currently delayed,
along with the continuation of criticism surrounding the Infosoc directive, the
AG’s opinion is very much welcome. Additionally, as Member States have the
habit of tailoring copyright exceptions to their legal traditions, the AG’s
opinion (despite its lack of binding effect) is a meaningful clarification of the
meaning and scope of the parody exception at EU level and provides insight as
to its interplay with other fundamental rights.

The facts

The facts are pretty straightforward and concern the
distribution of a calendar of which the front page reproduces a well-knownSpike
and Suzy(Suske and Wiske) album cover distorted in a way to
promote a political message of the Vlaams
Belang’s party (Flemish
nationalist political party). Unequivocally,
the alleged infringing work represents the City of Ghent’s Mayor, Mr Termont,
wearing a white tunic with a belt displaying the Belgian colours, distributing
money to people from different backgrounds.This
calendar was distributed during the party’s New Year’s Eve reception and later,
in brochures as well as on the party’s website. Consequently, the heirs and
rightholders of Mr Willebrord Vandersteen
(the author of the comic albums) claim infringement of their copyright in the
comic albums against Mr Johan Deckmyn (member of the Vlaams Belang’s party) and
the Vrijheidsfond, the association responsible for the party’s funding and
promotion.

The
two works:

The applicants argue that the alleged infringing
drawing reproduces the general aspect of the original cover and other typical
elements of the Spike and Suzy album covers such as the orange colour, font,
characters, and title. The main differences between the two
works lie in the substitution of the Spike and Suzy’s character for a depiction
of Ghent’s Mayor joined to the characters chosen to pick up the coins conveying
a discriminatory message and the
addition of a handwritten statement “Fré freely in the style of
Vandersteen”.

At national level, the
court of first instance granted an interim injunction preventing further
distribution of the calendar. Subsequently, the defendants appealed arguing
that the work is allowed as it falls under the parody exception. The applicant
also appealed to prohibit the political party to use the protected works in any
manner.

After recognising the
absence of uniformity in the legal tests applicable to the parody exception,
the Brussels Court of Appeal decided to refer to the Court of Justice of the
European Union (CJEU).

1. Is the concept of 'parody' an independent
concept (read “autonomous concept”) in European Union law?

2. If so, must a parody satisfy the following
conditions or conform to the following characteristics:

- the display of an original character of its own
(originality);

- and such that the parody cannot reasonably be ascribed
to the author of the original work;

- be designed to provoke humour or to mock,
regardless of whether any criticism thereby expressed applies to the original
work or to something or someone else;

- mention the source of the parodied work?

3. Must a work satisfy any other conditions or
conform to other characteristics in order to be capable of being labelled as a
parody?

The opinion

Preliminary remarks

Before turning to the analysis of the questions referred by the Belgian
court, the AG notes what is not asked
of the court and consequently, what is left out of the opinion.

Firstly, as moral rights are
excluded from the scope of the directive (recital 19), their ensuing violation
is left to the assessment of national judges.

Secondly, the interpretation of the three-step
test enshrined in Article 5(5) of the directive requiring copyright
exceptions to be applied “in certain special cases which do not conflict with a
normal exploitation of the work or other subject-matter and do not unreasonably
prejudice the legitimate interests of the rightholder” is also left out of the
questions referred. Accordingly, the AG emphasises the role of the national
judge to verify whether these conditions are met in the dispute.

Finally,
the AG observes that the Belgian Court does not ask the CJEU to evaluate the
Belgian limit to the exception whereby the exception is applicable if the work
is created in accordance with honest practices (see Article 22(1)(6) of the Belgian Copyright
Act1994).

The analysis of the questions referred

In relation to the first question referred, the AG states that “parody”
is an autonomous concept of EU law, because the Directive refrains from
defining or expressly referring to the Member States for the definition of that
concept. This being said, the AG adds that when EU law does not provide
sufficient guidelines, the nature of an autonomous concept does not preclude Member
States from having a large margin of appreciation to determine the requirements
attached to the exception.

Turning to the two other questions referred, the AG decides to address
these together as they relate to the requirements for invoking the exception. Firstly,
the AG notes that there is no significant distinction between the three
concepts mentioned in the provision (parody, pastiche and caricature) and
considers them together as they all share the common feature of being an
exception to copyright. After consulting dictionaries to grasp the ordinary
meaning of parody and its Greek etymology, the AG establishes common features
to any parody. These comprise structural and functional features.

Structural features of parodies

A parody is
simultaneously copy and creation. The nature of parody requires borrowing
elements from earlier works. These elements borrowed can consist in essential elements
of the original work as for the parody to be successful the earlier work must
be recognisableto the public. But the parody is also creation as the
parodist distorts the original work and it is in his interest that the public
does not confuse the new work with the original work.

Against this
backdrop, the AG attributes to Member States the duty to determine whether the
new work incorporates enough new elements to not constitute a mere copy of the
original with little modification. In light of the foregoing, the AG notes that
Member States can adopt different requirements such as the absence of
confusion, sufficient detachment or whether more elements are copied than
necessary.

In a nutshell, the
parody needs to be original in a sense that it must not be confused with the
original work it borrows from.

Functional features of parodies

To break down the reasoning,
the AG distinguishes between its subject, effect and content.

Firstly regarding
the subjects (or targets) of parodies, the AG supports that parody works can
either target the earlier work or its author, or a third subject external to
the work it borrows from.

Secondly, the
effect of the parody must be humorous. However, the AG
leaves the assessment of the kind of comical effect required to Member States
which bear an important margin of appreciation to determine whether the parody
meets this threshold.

Thirdly in relation
to the content of parody and the influence of fundamental rights, the AG
examines the relationship between copyright (Article 17(2) of the Charter of fundamental rights) and the parodist’s freedom of expression (article 11(1), EU Charter of
Fundamental Rights). The national judges must bear in mind the importance of
preserving the freedom of expression, an essential feature of any democratic
societies. This being said, this right is not absolute. Besides the limits on
the right set out in Article 10(2) of the European Convention on Human Rights, the Charter protects other values which may conflict with the freedom
of expression such as human dignity (Article 1 of the Charter) and
non-discrimination based on cultural, religious and linguistic diversity
(Article 22 of the Charter). Based on this, the AG notes that the parody
exception should not be refused just because the author of the original work
does not approve the comment made through the parody. Nevertheless, the AG suggests
an important limit upon the application of the exception by stating that the
exception is inapplicable where the parody conveys “a message radically
contrary to the deepest values of a particular society” (this quote is
translated from the French version by the author of this post). In conclusion,
national judges must weigh the different fundamental rights in relation to the
circumstances of the particular case.

Comments

As this is the
first parody case referred to the CJEU, this dispute is likely to attract a lot
of attention and possibly, criticisms. By making “parody” an autonomous concept
of EU law, the AG follows the CJEU’s consistent approach endorsing the need for
a uniform application of EU law. For example with the Padawan decision in relation to the autonomous
concept of “fair compensation”, the Court stated : “according to
settled case-law, the need for a uniform application of European Union law and
the principle of equality require that the terms of a provision of European
Union law which makes no express reference to the law of the Member States for
the purpose of determining its meaning and scope must normally be given an
independent and uniform interpretation throughout the European Union; that
interpretation must take into account the context of the provision and the
objective of the relevant legislation” (See Padawan at para 32).

Interestingly, when it
comes to defining what parody consists of, the AG chooses not to distinguish
the three terms parody, caricature and pastiche. This appears to be in line
with the nature of parody which is seen as a multivalent term covering among
others satire, pastiche, caricature, spoof, irony and burlesque.

By the structural feature,
the AG acknowledges the particular nature of parody which requires both copying
and creation. The AG infers that national judges have to weigh whether the
parody comprehends enough creation to exclude representing a slavish imitation
of the original. Ultimately, this is where the difficulty lies as parodist
needs to copy enough elements to trigger the memory of the original work in the
public and simultaneously, supply enough new elements to avoid confusion. Against
this backdrop, the AG requires the parody to be original rather than a mere
copy with little alteration of the original. One is allowed to wonder what kind
of originality is required. Are we talking of the ordinary meaning of
originality or the copyright law meaning (i.e. “original” enough to trigger
copyright protection)? On this question, the AG seems to leave the assessment
to the national judges.

Moving on to the functional
features of parody, the AG appears to allow the application of the exception to
both target (commenting either on the work it borrows from or its author) and
weapon parodies (using the parody to comment on a third subject). This approach
departs from the US distinction made in the landmark Campbell decision where the US Supreme Court held
fair use applicable only to target parodies. This being said, this brings the
EU closer to other jurisdictions such as Australia and Canada where legislators rejected the distinction
between target and weapon parodies in the wording of the provision.

The effect of parody needs
to be humorous. The assessment of the required comical effect is left to the
national judges and depends on the particular circumstances of the case.
However, the AG appears to be in favour of a liberal
interpretation as the parody exception relies heavily on freedom of expression
considerations. This being said, one wonders whether the effect equals the
result of the parody itself. Indeed problems could arise if it is the effect of
the parody on the public which is required. This is explained by the fact that
this effect relies on several accounts such the talent of the parodist but also
relies on the public exposed to the parody.

Finally and surprisingly,
the AG appears to let the Member States (and especially the national courts)
assess the content of parodies. By weighing the different fundamental rights at
stake, the courts can limit the application of the parody exception where the
message is radically contrary to the fundamental values of a particular society
such as xenophobia, racism and homophobia but could be extended to other
cultural diversities as long as these are considered by national courts jeopardised by the parody. This last point promises to attract many criticisms as it
is an open door to a kind of censorship.

In conclusion, much leeway
is left to national judges and it is not given that this interpretation amounts
to harmonisation among the Member States. Finally, whether the approach of the
AG will be followed by the CJEU remains to be seen.